1. Refugees: Law and Policy
Julian Bava
Emma Mathers
April 2017

2. Sources of International (Refugee) Law
Treaties and conventions
UDHR (Art. 14) (“Everyone has the right to seek and to enjoy in other countries asylum from persecution.”)
Convention relating to the Status of Refugees (1951/1967)
Customary international law
Opinio juris
State Practice
Judicial decisions, scholarly opinions

3. Refugee Convention Definition
“[Any person who] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country [ …]” –Art. 1(2)

4. Asylum and Non-Refoulement
Non-Refoulement (Art. 33)
“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, member- ship of a particular social group or political opinion.”
Asylum
Political
Humanitarian
Refugee

5. Who is a refugee?
María Espinoza and her three daughters were born in Honduras, where gang violence and police brutality instill constant fear in the local population. María and her children are routinely abused by María’s husband, who often beats them while expressing his hatred for “all you worthless women.” María decided to take a great personal risk by fleeing her home with her children. She illegally crossed into Guatemala and Mexico on foot before arriving at the U.S. border, where she illegally entered Texas with the help of smugglers who charged her fees that completely depleted her savings.
Could María successfully apply for asylum? Where?

6. Who is a refugee?
Malik is a 12 year old Syrian-Jordanian dual citizen who was orphaned when government forces indiscriminately attacked a residential neighborhood with chemical weapons, in violation of the Geneva Conventions and the Chemical Weapons Convention. Malik was able to travel with family friends to the American Embassy in Beirut, Lebanon, where he requested asylum in the U.S.
Is Malik a refugee? Is the U.S. required to resettle him?

7. U.S. Immigration Law Constitution Executive agencies 1st Amendment
5th Amendment
14TH Amendment
Executive agencies
ICE and CPB
Asylum vs. USRAP (Refugee Admissions Program)
Executive Office for Immigration Review

8. U.S. Immigration Policy – Trump Administration
First “Travel Ban”
Banned entry of any citizen of Iraq, Iran, Syria, Sudan, Somalia, Yemen, and Libya
Revoked visas
Indefinite suspension of Syrian refugee admittance
Prioritized religiously based persecution of minority religions
120 day suspension of refugee program
Second “Travel Ban”
Removed Iraq from list
Specifically did not apply to current visa holders or dual nationals
Removed indefinite Syrian suspension and religious prioritization

9. Discussion
Do either or both of the bans violate international and/or domestic law?
Regardless, is it good policy?

10. Travel Bans Enjoined Washington v. Trump Elshikh v. Trump
States of Washington and Minnesota on behalf of their public universities
Article III standing; ”cases and controversies”; injury must be:
Concrete and particularized
Actual or imminent
Traceable to the challenged action of the defendant
Injury is likely to be redressed by favorable decision
TRO on most sections
Elshikh v. Trump
Joined by Hawaii
Added religious discrimination claim (Lemon test)
Primary secular purpose
No principle effect of advancing or inhibiting religion
May not foster excessive entanglement with religion
TRO only on sections 2 and 6  Who has standing on behalf of refugees (5) ?

11. Syria and Humanitarian Aid
Charity vs. Justice
Cliff analogy